ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-19-40000053-00AP

DATE: 20200929

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Y.P.D.

L. Gonet, for the Crown

M. Stellato, for Y.P.D.

HEARD: 22 April 2020

s.a.Q. akhtar j.

On appeal from the conviction entered on 6 November 2018 by Justice Susan M. Chapman of the Ontario Court of Justice.

FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] The appellant was convicted of committing sexual assault and sexual interference on his daughter, hereinafter referred to as L.D., after a three-day trial in the Ontario Court of Justice. At the conclusion of proceedings, the sexual assault charge was stayed pursuant to R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, and the applicant was sentenced to eight months in prison.

[2] He appeals his conviction on the basis of alleged numerous errors committed by the trial judge.

[3] For the following reasons, the appeal is dismissed.

The Crown’s Allegations

[4] L.D. was 8 years of age at the time of the events. Her parents were estranged and L.D. lived with her mother, visiting her father on a weekly or sometimes fortnightly basis.

[5] On 9 November 2012, the appellant and his girlfriend, P.F., drove L.D. to a children’s party. Afterwards, all three returned to the appellant’s apartment where he and P.F. argued over the appellant’s consumption of alcohol at the party before driving home. Although L.D. would normally sleep with P.F. when she stayed over, on this occasion she decided to sleep with her father in the living room because she was upset with P.F. for prohibiting her from eating candy at the party.

[6] Everyone went to bed at approximately 11 p.m., with L.D. and the appellant sleeping on an air mattress in the living room. L.D. testified that during the course of the night, she felt the appellant’s hand move up her leg to her crotch area. L.D. brushed him away but the appellant continued and touched her vagina beneath her underwear. The appellant then pushed his fingers into L.D.’s vagina on a number of occasions, although she was unable to remember exactly how many times this occurred. Eventually, the appellant left and went to his bedroom.

[7] After L.D. returned to her mother’s home the next morning, her mother noticed blood on her underwear. When her mother asked L.D. if someone had touched her, L.D. said “no”. She testified that she answered in this way because she was scared. L.D. was taken to a doctor to see if she had started menstruating and, when asked, she again denied being touched inappropriately.

[8] L.D. continued to visit with her father but subsequently informed her mother that she no longer wished to do so, without disclosing why. However, the visits continued.

[9] Some time later, L.D. attended a Grade 7 health class. When the teacher spoke on the topic of sexual assault, L.D. began to cry and left the room. Shortly afterwards, she disclosed what had happened to a friend. As a result, the appellant was arrested and charged.

[10] L.D’s mother confirmed that she had attended the doctor with L.D. on 16 November 2012 and that L.D. actually began menstruating at 12 years of age.

[11] At trial, the appellant denied the charges testifying that his relationship with L.D. had been damaged over a number of incidents including an occasion where he suspected her of stealing money, another incident involving an argument with L.D.’s mother over hygiene, and a third incident where L.D. became upset after looking at wedding photos and realising that she was not in them. After these incidents, L.D. stopped staying over the appellant’s apartment.

[12] P.F. testified to the deteriorating relationship between L.D. and her father and cast doubt on some of L.D.’s recollections of where she slept when she stayed at the appellant’s residence.

[13] Both the appellant and P.F. testified that the only parties that the appellant attended with L.D. were the soccer club parties held in the summer and December. The defence also called evidence that in 2012, the Christmas party was held on 23 December 2012.

Grounds of Appeal

[14] The appellant argues that in entering a conviction, the trial judge failed to differentiate between the credibility and reliability of L.D.’s evidence. In so doing, the appellant argues that the judge based her verdict on unreliable and irrelevant evidence, such as evidence from L.D.’s doctor. Moreover, argues the appellant, the judge misapprehended evidence that was material to the issues in the case.

ANALYSIS

[15] As noted, the appellant’s principal argument is that the trial judge confused credibility with reliability when assessing L.D.’s evidence. In doing so, the appellant argues that the trial judge failed to deal with whether her evidence was the truth, rather than what L.D. believed had happened.

[16] More specifically, the appellant argues that the judge failed to address inconsistencies in L.D.’s evidence, the presence of which, he says, should have raised a reasonable doubt about guilt.

[17] The parties do not dispute the distinction between credibility and reliability and its impact on a verdict. In R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41, Watt J.A. described the differences between the two concepts:

Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately

i. observe;

ii. recall; and

iii. recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, at 526 (C.A.) [emphasis added].

[18] Notwithstanding the appellant’s able arguments, I do not agree that the trial judge failed to properly distinguish between credibility and reliability. The judge provided detailed reasons including L.D.’s personal traits in remembering events and evidence supporting some of her factual claims such as the spotting on her underwear.

[19] Although the appellant complains that the trial judge failed to deal with inconsistencies, it should be remembered that a trial judge is not obliged to address every claim of inconsistency: R. v. R.A., 2017 ONCA 714, 355 C.C.C. (3d) 400, at para. 45, aff'd 2018 SCC 13, [2018] 1 S.C.R. 307; R. v. E.H., 2020 ONCA 405, at para. 46; R. v. Burnie, 2013 ONCA 112, 294 C.C.C. (3d) 387, at para. 24.

[20] Moreover, the judge did address the inconsistencies. For example, with respect to the alleged discrepancy surrounding the touching, the judge found L.D. was a young child when the offence occurred and that her memory was more reliable when she initially gave her statement to the police. In addition, the inconsistencies between L.D., the appellant and P.F. with respect to which party L.D. attended was resolved by the trial judge’s finding that L.D. was credible, whereas the other witnesses were not.

[21] Nor do I accept that the fact that there were misapprehensions of evidence that make the conviction unsafe. Although it is correct that the judge erroneously described the appellant as “quickly” packing L.D.’s bag the day after the assault was alleged to have occurred, this was one item in a list set out by the trial judge as supporting L.D.’s credibility. It was hardly a matter that went to “substance” rather than “to the detail”: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193, at p. 221. For the same reasons, I find the trial judge’s reference to the party as being a “children’s” party as opposed to a “kid’s” party (as described by L.D.) as being inconsequential.

[22] The appellant does raise one note of concern namely the trial judge’s use of the word “corroborate” when referring to L.D.’s evidence. The judge appeared to refer to L.D.’s mother’s observations of spotting on L.D.’s underwear and the subsequent hospital visit to be “highly corroborative not only of [L.D.’s] credibility but her reliability”. As the appellant rightly points out, the sighting of blood on L.D.’s underwear and the resulting doctor’s appointment was not corroborative of the sexual assault allegations.

[23] However, I do not agree that the judge used the evidence in this way. There was more than one reference in the judge’s reasons to the fact that the medical evidence was simply a “pinpoint” for the date of the events, rather than expert evidence substantiating the assault. The judge stated that the “medical records point to the timing of events and in this way corroborate L.D.’s statement to the police concerning subsequent events”. In other words, the medical evidence was used not to confirm the sexual assault charge but to provide comfort in the general reliability of L.D. as a witness along with the other evidence specifically referred to by the judge.

[24] For these reasons, the appeal is dismissed. I thank both counsel for their helpful submissions.

S.A.Q. Akhtar J.

Released: 29 September 2020

COURT FILE NO.: CR-19-40000053-00AP

DATE: 20200929

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Y.P.D.

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.